New Ohio Law Closes the 'Absent Doctor' Loophole in Malpractice Deadlines (H.B. 179)

Published October 10, 2024 · New Laws

Two years ago, the Supreme Court of Ohio told patients that a doctor cannot run out the clock on a malpractice claim by leaving the state. On October 24, 2024, a new law takes that protection away. House Bill 179 also changes how patients must structure a lawsuit against a hospital or medical practice. If you suspect that a doctor, dentist, chiropractor or other provider harmed you or a family member, these changes make it even more important to act quickly.

The background: Elliot v. Durrani

Ohio gives patients one year from the time a malpractice claim accrues to file suit under R.C. 2305.113(A), and it adds a hard outer limit called a statute of repose. Under R.C. 2305.113(C), no medical claim may be filed more than four years after the act or omission, even if the patient did not yet know about the injury. The statute has narrow exceptions, including for injuries that could not reasonably have been discovered within three years and for foreign objects left in the body.

A separate statute, R.C. 2305.15(A), has long paused limitation periods while a defendant is out of the state, has absconded or is hiding. In Elliot v. Durrani, 171 Ohio St.3d 213, 2022-Ohio-4190, the patient of a Cincinnati spine surgeon who fled to Pakistan in 2013 argued that this tolling statute also paused the four-year repose period. The Supreme Court agreed, holding that by its plain language R.C. 2305.15(A) tolls the medical-claim statute of repose while the defendant is absent. I explained that decision in our December 2022 post on Elliot.

The dissent in Elliot noted that the General Assembly could amend the statutes if it disagreed. It did.

What H.B. 179 changes

House Bill 179 of the 135th General Assembly was sponsored by Reps. Adam Mathews and Brian Stewart. It passed the House on January 10, 2024, cleared the Senate on June 26, 2024, and was signed on July 24, 2024. It takes effect October 24, 2024.

1. Leaving Ohio no longer stops the repose clock

The amended R.C. 2305.15 keeps the old rule for ordinary limitation periods: the clock still pauses while a defendant is out of state, absconded or concealed. But new division (A)(2) says that rule "does not apply to statutes of repose," and it lists them, including:

• the four-year medical, dental, optometric and chiropractic repose period in R.C. 2305.113(C) and (D);
• the ten-year product-liability repose period in R.C. 2305.10(C);
• and the repose periods for certain other professional and construction claims.

The bill states its purpose plainly. Section 3 declares that the amendment is meant "to expressly overrule" Elliot v. Durrani.

In practical terms, once the law takes effect, a doctor who moves to another state, or leaves the country, will generally be protected by the same four-year outer limit as every other provider.

2. In malpractice cases, you must name the individual provider

The bill also enacts a new section, R.C. 2307.241, on vicarious liability, the rule that makes an employer responsible for the negligence of its employees. Under the new statute:

• An injured person may sue the employee, the employer, or both.
• The employer's liability is derivative. For the employer to be liable, the employee must have committed the negligent act within the scope of the job.
• In most cases, the employee is not a necessary party. But in a medical claim against a physician, podiatrist or physical therapist, and in dental, optometric, chiropractic and legal-malpractice claims, the individual provider must be part of the case.

For patients, that means a claim against a hospital or practice based on a doctor's negligence has to include the doctor, filed and served on time. A claim that names only the institution is at risk.

What the bill does not say

The enrolled bill does not contain a provision addressing how the repose change applies to malpractice that occurred before October 24, 2024. Courts will have to work that out case by case, and it would be a mistake to assume any older claim is safe. If you have been relying on a doctor's absence from Ohio to extend your time to sue, talk to a lawyer now, before the effective date.

The bigger picture: deadlines keep getting shorter

This is the second major narrowing of malpractice deadlines in a year. In December 2023, the Supreme Court held in Everhart v. Coshocton Cty. Mem. Hosp., 2023-Ohio-4670, that the four-year repose period applies to wrongful-death claims based on medical care, as I discussed in our January post on Everhart. A family can lose a medical wrongful-death claim before the patient even dies.

Put the two together, and the rule for families after October 24 is stark: the four-year clock starts with the act or omission, it applies to wrongful-death claims, and it will no longer pause because the provider left Ohio. The narrow exceptions in R.C. 2305.113(D), for injuries that could not reasonably have been discovered and for foreign objects, remain, as does tolling for minors and people of unsound mind. Our guide chapter on deadlines and the timeline of an Ohio injury case explains the one-year limitation period, the 180-day letter, and the repose period side by side.

What this means for you

• Do not wait to see if things get better. If you suspect a misdiagnosis, a surgical error, or a medication mistake, the one-year limitation period and the four-year repose period may both already be running.
• A provider's move out of state will no longer buy you time for conduct governed by the new law.
• Identify every provider by name. Medical records, operative reports and billing statements show who actually treated you. Under R.C. 2307.241, those individuals must be named in a malpractice suit against their employer.
• Families should act immediately after a death that may have been caused by medical care. Our wrongful death page explains how those claims work, and our guide on why you should talk to a lawyer early explains what an early review accomplishes.